Lien On Me

The Scenario

You notice your brakes are squeaking so you take your car to the shop to have them checked. You and the mechanic discuss what work needs to be done and he gives you a written estimate.

A few days later, the mechanic calls you and informs you that your car is ready.  You arrive at the shop and the mechanic hands you a bill for the price you both agreed on.  However, during the last several days, a family emergency has arisen and you can no longer afford to pay the total.  So, now what?

Mechanic’s Lien

A mechanic’s lien may have been created.  In Texas, if a person has furnished labor and repairs and has not been paid for those services, a lien arises against the vehicle.

A mechanic’s lien is only created when the registered owner of the vehicle is given a written statement of the services and charges and the mechanic has only completed that work which was previously agreed upon by the customer.

Enforcement

Mechanic’s liens are enforced through judicial foreclosure sales.  Therefore, the mechanic must file suit asserting the lien against the registered owner.

The court must then determine if all of the statutory requirements have been met and that no other party has a superior right to the property.  If the court finds the mechanic has first priority and the requirements have been met, the court will order the vehicle to be sold at a foreclosure sale.

The proceeds of the sale will then be applied to the amount owed to the mechanic and any amount left over will be given to the registered owner.

Types of Property

The scenario above only discusses a lien with regard to a car in a repair shop.  However, a mechanic’s lien may also be created in regard to other property.

Regarding real property, a mechanic’s lien may be known as a "construction lien."  For those who provide supplies and materials to other’s without payment, a materialman’s lien or "supplier’s lien" may attach.  All of these liens are created and enforced exactly the same but have different names to clarify what property they attach to.

What Can You Do?

You should discuss your situation with the mechanic and work out a payment plan if possible.  Most companies and individuals will understand that situations arise that cause financial hardships and are willing to work with you on payments.

It is important to know that these liens exist and that the mechanic may in fact have a superior right to your property than you do.  When I say “superior right,” I mean that the mechanic can keep your vehicle until you pay off the balance.

--Authored by Matthew L. Harris, Esq.,

Matthew Harris Law - Property Law Division

1001 Main Street, Suite 806, Lubbock, Texas, 79401-3322, 

Attorney@MatthewHarrisLaw.com

(806) 702-4852 

www.MatthewHarrisLaw.com

Non-Police Interrogations

Use of Interrogation

When the police interrogate you, they must inform you of certain rights (remain silent, attorney, etc.), but not all interrogations are performed by police.  Sometimes interrogations are performed by store employees, your boss, or even a neighbor, and they aren't required to inform you of your constitutional rights. 

However, even though the police aren't conducting these interrogations, and you haven't been informed of your rights, confessions obtained in this manner can still be used against you in a criminal trial.

The Confession

Let's imagine you are shopping with a friend, and unbeknownst to you, the friend decides to shoplift.  As you are leaving the store, an employee grabs you both and takes you to an interrogation room.

Part of their interrogation includes a "Civil Recovery Form" where they list the things that they suspect you or your friend of taking and have you sign it.  At the bottom of this form is a small disclaimer that says that you understand that this form "will be used in criminal prosecution."

It amounts to a written confession and is very persuasive to a jury. 

Officers, not Police

As merchants, they do have a limited power to detain you if they suspect you of shoplifting, but you're better off demanding that they call the police instead of letting a retail employee convert your words into a report, coerce you into signing it, and then letting a jury of your peers decide your fate upon hearing it.

The Loss Prevention Officers are not Police Officers.  They are merely private citizens and you do not have to talk to them any more than you have to talk to a neighbor that accuses you of stealing his newspaper.  On that same note, your neighbor doesn't have to inform you of your constitutional rights before attempting to interrogate you.

The Solution

The person in the best position to protect your rights is you.  Know your rights and do not be afraid to exercise them regardless of whether it is a retail employee, your boss, or the police.  After identifying yourself; Remain Silent, Do Not Consent to Searches, and Demand Your Attorney Be Present During Any Questioning.

--Authored by Matthew L. Harris, Esq.,

Matthew Harris Law - Criminal Law Division

1001 Main Street, Suite 806, Lubbock, Texas, 79401-3322, 

Attorney@MatthewHarrisLaw.com 

(806) 702-4852

www.MatthewHarrisLaw.com

Texas No-Refusal Weekend

Refuse What?

For the first time in history, an entire state, Texas, will implement the "no-refusal" policy concerning suspicion of Driving/Boating While Intoxicated.  This policy is regularly implemented at the city or county level during holiday weekends, but over the 2011 4th of July weekend, the entire state will implement this policy.

Texas DWI Law

In Texas, if you are suspected of being intoxicated while driving or boating, you can be asked to perform a Breathalyzer Test.  If you register .08 Blood Alcohol Content (BAC) or higher, then you are presumptively impaired and arrested on Driving/Boating While Intoxicated.

You can refuse to submit to this test, but you will automatically lose your driver's license for 180 days just for refusing.  However, some people see it as a gamble to get out of a DWI/BWI conviction because there will be one less piece of evidence to use against them at trial.

Blood Warrant

In Texas, if you refuse to submit to a breathalyzer test to determine your BAC the police must obtain a warrant to draw blood and have it analyzed to determine your BAC.

This weekend, starting at 6pm, Friday, July 1, and ending at 6am, Tuesday, July 5th, all Texas police departments will have a Judge or Magistrate on standby to expeditiously sign these warrants so that police can obtain a blood sample from anyone that refuses to submit to the breathalyzer test.

Safety

The most important thing to take from this is that drinking and driving/boating is stupid and will get someone else, or yourself, killed; so don't do it.  

If you choose to refuse a search, do so respectfully, but be ready for a needle stick in your arm.  If you get arrested though, don't expect to call a mulligan and just give up driving for 6 months because the police will be cracking down.

--Authored by Matthew L. Harris, Esq.,

Matthew Harris Law - Criminal Law Division

1001 Main Street, Suite 806, Lubbock, Texas, 79401-3322, 

Attorney@MatthewHarrisLaw.com 

(806) 702-4852

www.MatthewHarrisLaw.com

Civil Defense

When you hear "Civil Litigation," your first thoughts probably go to those flashy Personal Injury commercials featuring an aggressive attorney with an absurd nickname.  However, not all civil litigation involves a lawsuit against a large corporation. 

Sometimes, that civil litigation machine gets pointed at an individual like you; and sometimes, the best defense is just a good defense.  Today we're going to discuss your options in defending a civil case.

Pretrial Settlement

Fewer than 5% of lawsuits end in a trial.  Often, the attorneys for both sides are able to meet and discuss the demands of each side and negotiate a settlement that both sides can live with.  This most likely involves drafting a new agreement to bind each side to the terms of the settlement. 

If both sides aren't able to find a middle ground to agree upon, then they may pursue Alternative Dispute Resolution to avoid the costly expense of a trial.

Alternative Dispute Resolution

One of the tools in your Civil Defense Attorney's toolkit is ADR.  ADR provides structure to encourage both sides to settle the dispute without the need for a trial.

Mediation is a form of ADR and is basically a settlement negotiation where a third party, the Mediator, is present to encourage both sides to work towards a settlement goal.  However, the Mediator doesn't offer an opinion or make any binding decisions.

Arbitration is a form of ADR and operates like a mini-trial where a third party, the Arbitrator, hears the arguments from both sides and offers an opinion on the likely outcome.  Arbitration is often included in contract terms to avoid trials, but it can be either binding or nonbinding on the parties.

Criminal Trial v. Civil Trial

If the parties in a civil lawsuit aren't able to come to an agreement, then they may press forward with a trial on the merits of the case. 

Defending a civil lawsuit is much different than a criminal defense case because unlike the criminal case, there is no right to remain silent.  The 5th Amendment only provides protection from incrimination, and if you aren't being asked questions that will incriminate you, then the Judge may compel you to take the stand and answer questions.

Another large difference between civil defense and criminal defense is the burden of proof that the Plaintiff has to show to win their case.  In criminal defense, you are presumed innocent and the jury has to find you guilty "beyond a reasonable doubt."  In most civil defense cases, the jury just has to find that you committed the act "by a preponderance of the evidence," which is just 51% sure that you did it.

Settlement v. Trial

Your civil defense attorney will make recommendations of which course of action is best for you, but that decision will ultimately fall upon you.  

Settlement has its benefits because it is likely less than you would pay if you lose the trial; but the downside is that you're definitely paying something.  

Trial has its benefits because if you win, you're off the hook; but the downside is that if you lose, you may end up paying more than the settlement offer AND the other side's attorney's fees.

Discuss your options with your civil defense attorney and at least be prepared to consider the settlement options.

--Authored by Matthew L. Harris, Esq.,

Matthew Harris Law - Civil Litigation Division

1001 Main Street, Suite 806, Lubbock, Texas, 79401-3322, 

Attorney@MatthewHarrisLaw.com 

(806) 702-4852

www.MatthewHarrisLaw.com